Intellectual Property Rights In Kenya

  • Written by L G
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Kenya, as a former British colony, has borrowed a lot of her laws from the English legal system. This borrowing has led to the introduction of laws which at times may conflict with traditional ways. Intellectual Property Law could be one such.

For a long time matters of Intellectual Property have had no space in the minds and hearts of Kenyans, a fact not helped by an almost total ignorance and the fact that infringing products and services are usually cheaper.

No comprehensive research to my knowledge has been carried out to ascertain how much the Kenyan population comprehend and respect Intellectual Property. In the event that such a research was carried out this decade it would not have been surprising to find that a majority would have found it very strange that one could not for example mass photocopy a whole book without infringing someone’s property rights.

No instance can demonstrate this better than a television show from one of the local channels I once watched during my college days.

The television show incident occurred one evening after a rather embarrassing football match in which my team had lost by an even more embarrassing score-line and the cause of it all was out goalkeeper who happened to have been my best friend and was sitting with me at a coffee bar in town – all the while trying to infer that my missing three penalty kicks had something to do with it. For utter clarity and avoidance of any lingering doubts; of course it had nothing to do with it.

Our slight disagreement was distracted by the aforementioned show which was a feature on a somewhat successful furniture outlet and its creative owner. Being interviewed, the self-made millionaire let in on some of the secrets of his success. That he started off by making simple beds and seats but increased his clientele base when he started copying designs from magazines and other publications. That was in addition to borrowing heavily from the designs he would get from other furniture outlets and carpenter’s workshops, the same which he would either copy to the latter or further improve on. His ability to reproduce such designs was his greatest asset – a ‘talent’ which was duly lauded by the show’s host.

Not even the host of the show raised the possibility of intellectual property infringement.

For a long time that has been one of the biggest drawbacks on the fight against Intellectual Property infringements in the Kenyan market. The fact that people never realized that Intellectual Property was just like any other property and its use needed the consent of the owner. A fact epitomized by a national television station running a feature where potential IP infringement is disclosed without it being an issue.

Since that evening a lot has happened to affect Intellectual Property Rights in Kenya. Several rights owners have embarked on public awareness campaigns in a bid to enlighten on the disadvantages of IP infringement and the penalties thereof. These effors plus those put in by the Kenya Industrial Property Institute (inter alia the Kenyan Trade marks office and Patent office) and the Copyright Board (after a long period of inaction) have substantially changed the situation and there is a growing awareness and respect of IP in Kenya.

The Copyright Act, Trade Marks Act and the Industrial Property Act were all amended or introduced to enable the Kenyan IP law to be at par with the international standards.

The Copyright Act, 2001 provides a modern and substantial legislation of the Copyright law as well as hefty fines for infringement. Several Copyright owners have taken advantage of the provisions of the Act for Anton Pillar orders where one can go to court ex-parte and get orders allowing for the impounding of infringing materials and works before they are destroyed or otherwise hidden by the infringers.

The Industrial Property Act and the Trade Marks Act are being used by right owners (in many cases corporations) to get injunctive orders and damages against and from infringers. But more important than big corporations and multinationals protecting their IP rights in courts is the fact that individual Kenyans regardless of their wealth are beginning to accept Intellectual Property and seek for its protection where there is need.

An example of this one is Mr. Horace Mate.

Mr. Mate is jua kali carpenter who has gotten to realize just how much he can get from identifying his Intellectual Properties, protecting them and more important respecting other people’s. His story is an example of just how much the IP environment has changed in Kenya. And while this awareness of IP may be said to have been by chance, in the long end it was inevitable.

A very creative individual and a carpenter by trade, the mixture had led to his producing several aesthetically compelling and unique furniture but the industry practice had never allowed him to enjoy the benefits of his creation, for almost as soon as he would start making and selling a new design, other carpenters would soon have copies of the same for sale.

It was when passing along Mombasa Road one morning that he saw the board advertising the Kenya Industrial Property Institute and the protection it offers. A visit to the Institute ensured that all of his subsequent creations were duly protected as Industrial Designs.

He regularly seeks expert advice on potential design and is very keen not to infringe other’s existing rights. So far no incident involving the infringement of his rights has not been sorted out by at most a cease and desist notice.

The Copyright Act of 2001, the Trade Mark Act and the Industrial Property Act all provide for the protection of Intellectual Property Rights in Kenya and there have been various disputes in Kenyan Courts decided on them but the most important thing, the most important change, is that of Kenyans discovering the existence and significance of Intellectual Property Law.

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